McKinney v. Oklahoma City City of et al

Filing 154

ORDER denying 128 and 132 defendants' motions for summary judgment for the reasons stated in the order. Signed by Honorable Joe Heaton on 12/19/2014. (lam)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
WILLIAM RANDALL MCKINNEY,
Plaintiff,
vs.
CITY OF OKLAHOMA CITY, et. al,
Defendants.

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NO. CIV-13-0337-HE

ORDER
In this case, plaintiff William Randall McKinney asserts § 1983 claims for false arrest
and excess force against four Oklahoma City police officers.1 He also asserts a state law
claim for intentional infliction of emotional distress against the same defendants. Two
motions for summary judgment have been filed by the officers. Defendants Anglin,
Camacho, and Gulikers have moved for partial summary judgment as to plaintiff’s § 1983
claim for false arrest and the state law claim.2 Officer Williams has moved for summary
judgment on all claims.
Plaintiff’s claims arise against the backdrop of events occurring on February 15, 2011,
when an off-duty Oklahoma City police officer, Chad Peery, was severely injured while
trying to break up a fight in a bar involving acquaintances of plaintiff. It is undisputed that

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Plaintiff’s claims against the City of Oklahoma City were dismissed for failure to state a
claim, with leave granted to plaintiff to further amend his complaint if he chose to pursue other
claims against the City of Oklahoma City. [Doc. #80]. Plaintiff did not amend.
2

These defendants concede that factual disputes preclude summary judgment as to the excess
force claim.

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plaintiff was present in the general vicinity of the fight, but was not involved in the actual
assault on Officer Peery. Though he was not charged with any offense, there is evidence that
the Oklahoma City Police Department viewed him as a person of interest and issued an
officer safety bulletin as to plaintiff, based on his acquaintance with those involved in the
assault on Officer Peery and because of his own history of fighting with or injuring officers.
Here, plaintiff generally asserts that the various actions allegedly taken against him by
defendants were motivated by a desire to retaliate for his role, or perceived role, in the Peery
incident.
Plaintiff’s specific claims arise out of events that occurred on March 18, 2011. Based
on information received from a confidential informant, defendant Williams informed other
Oklahoma City police officers that plaintiff was at a local Hooters restaurant.3 This
information resulted in a nearly two-hour surveillance of that location. Eventually, plaintiff
left the restaurant, riding as a passenger in someone else’s truck. Another vehicle, driven by
others who had been with plaintiff at the restaurant, left at the same time but in a different
direction. Both vehicles were immediately stopped by police for traffic violations. Plaintiff
was removed from the vehicle and arrested for public intoxication and other charges.
The specifics of executing that arrest are disputed. Proceedings later followed to
revoke a twenty-year suspended sentence to which plaintiff was subject. Though other

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As noted below, there is a factual dispute as to what Williams said or did as to the
information, i.e. whether he directed some or all of the later actions of the other officers or whether
he just passed along information.

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alleged facts involving plaintiff’s history, defendants’ conduct, state court proceedings, etc.,
may ultimately bear on the disposition of plaintiff’s claims, it is unnecessary to the
disposition of the present motions to detail them here.
On a motion for summary judgment, the moving party bears the burden of proving
that (1) no genuine issue of material fact exists, and (2) based on the undisputed facts, he is
entitled to judgment as a matter of law. FED. R. CIV. PRO. 56(a). If he carries this burden,
the court must grant summary judgement. Id. In determining whether this standard is met,
the court views the evidence in the light most favorable to the non-moving party. Estate of
Booker v. Gomez, 745 F.3d 405, 411 (10th Cir. 2014). Applying this standard, the court
concludes that defendants are not entitled to summary judgment.
Defendants seek judgment as to the false arrest claim on the basis that the stop of the
vehicle in which plaintiff was riding was supported by probable cause, and that any evidence
suggesting bias or retaliatory motive on the part of defendants is irrelevant. Defendants’
argument is a correct statement of the law in general. “[I]f the stop is based on an observed
traffic violation or if the police officer has reasonable articulable suspicion that a traffic or
equipment violation has occurred or is occurring,” then it is valid. United States v.
Botero–Ospina, 71 F.3d 783, 787 (10th Cir.1995). “Whether the police officer making the
stop had any other motivation for the stopping the vehicle is irrelevant.” United States v.
Reyes Vencomo, 866 F. Supp. 2d 1304, 1329 (D.N.M. 2012) (citing States v. Cervine, 347
F.3d 865, 870 (10th Cir.2003); Botero–Ospina, 71 F.3d at 787; Hunnicutt, 135 F.3d at 1348).
But that general principle does not end the issue here. Plaintiffs have offered evidence
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suggesting that the underlying traffic violation did not in fact occur, including testimony
from both the plaintiff and the driver of the vehicle. As a result, a justiciable issue of fact
remains as to whether the traffic stop was proper.4 Moreover, because defendants appear to
rely on the “plain smell” doctrine5 to justify plaintiff’s arrest, and that doctrine requires that
the officer be legally present where he smells alcohol, the validity of the arrest is necessarily
tied to the validity of the traffic stop. As such, the false arrest claim is not appropriate for
summary resolution.
Defendants’ assertion of qualified immunity does not lead to a different conclusion.
Where that defense is asserted, “the burden shifts to the plaintiff to show that: (1) the
defendant violated a constitutional right and (2) the constitutional right was clearly
established.” Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009) (internal citations
omitted). “If, and only if, the plaintiff meets this two-part test does a defendant then bear the
traditional burden of the movant for summary judgment-showing.” Nelson v. McMullen,
207 F.3d 1202, 1206 (10th Cir. 2000). All factual disputes and reasonable inferences are still
resolved in plaintiff’s favor. Estate of Booker v. Gomez, 745 F.3d 405, 411-12 (10th Cir.

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The fact that plaintiff was a passenger in, rather than the driver of, the vehicle does not
impact his ability to challenge the legality of the stop. See Brendlin v. California, 551 U.S. 249, 251
(2007).
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“The plain view doctrine is equally applicable to plain smells, such that no search occurs
if a police officer detects an odor of illegal drugs, alcohol, chemicals or the like from a location in
which he is entitled to be.” United States v. Montes Ramos, 347 F. App'x 383, 390 (10th Cir. 2009)
(citing United States v. Angelos, 433 F.3d 738, 748 (10th Cir. 2006); United States v. Merryman,
630 F.2d 780, 784 (10th Cir. 1980)). Here, defendants claim that the arrest was lawful because
they smelled alcohol on plaintiff.

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2014).
It is clearly established that the Fourth Amendment prohibits law enforcement
officers from making a stop without reasonable suspicion that criminal activity is afoot. See
e.g., Oliver v. Woods, 209 F.3d 1179, 1185-86 (10th Cir. 2000). It is equally clear that,
absent some exception, a warrantless arrest must be justified by probable cause to believe
that a crime has been or is being committed. See e.g., id. Here, viewing the evidence in the
light most favorable to plaintiff, there is evidence from which a jury might conclude that no
traffic violation occurred and that the stop and arrest were therefore illegal under clearly
established law. In these circumstances, a basis for qualified immunity has not been shown.

Defendants also seek summary judgment as to the claim for intentional infliction of
emotional distress. To prevail on this claim, plaintiff must prove that defendants’ acts were
(1) intentional or reckless, (2) extreme and outrageous, and (3) the cause of severe emotional
distress. Computer Publ’ns, Inc. v. Welton, 49 P.3d 732, 735 (Okla. 2002). Defendants’
primary argument is that plaintiff has not proven that their behavior was “extreme and
outrageous.”
Here, taking the evidence in the light most favorable to plaintiff, there is evidence
from which a jury might conclude defendants’ behavior was sufficiently extreme and
outrageous. This includes evidence that defendants stopped the vehicle in which he was
riding without at least reasonable suspecion, forcibly jerked him from the vehicle, threw him
to the ground face-first, and tased him multiple times while screaming things like “this is for
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Peery” and “tase him again.” Plaintiff’s assertions and evidence are, of course, disputed. But
on summary judgment the task is to identify whether material issues of fact exist, not to
resolve them. Because of these disputes, defendants’ motion will be denied as to the claim
for intentional infliction of emotional distress.
Apart from the issues raised by all defendants, Defendant Williams separately argues
that summary judgment ought to be granted in his favor, as to all claims, because he did not
personally participate in the stop, arrest, or alleged beating. To be liable under § 1983, a
defendant must “subject or cause to be subjected...a plaintiff to a deprivation of his legal
rights.” 42 U.S.C. § 1983. This provision does not give rise to derivative liability, such as
strict liability or respondeat superior. Porro v. Barnes, 624 F.3d 1327-28 (10th Cir. 2010).
Rather, it requires that liability be based on the actions of the defendant himself. Id. (citing
Serna v. Colo. Dep’t. of Corr., 455 F.3d 1146, 1151 (10th Cir. 2006).
It is undisputed that Williams was not present at the surveillance, stop or arrest of
defendant. However, the evidence is disputed as to whether Williams was merely passing
information along to others or whether he played a more active role in directing the actions
of the other officers who plaintiff claims violated his rights. The court concludes that the
totality of the evidence submitted, viewed in the light most favorable to plaintiff, is sufficient
to create a justiciable question as to whether defendant Williams personally directed or
participated in the events allegedly violating plaintiff’s rights. This includes evidence
suggesting, (1) that Williams directed the other officers to find probable cause and stop the

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pickup; (2) his arguably unusual level of interest in plaintiff;6 (3) his combined knowledge
of the Peery incident, plaintiff’s past confrontations with police officers, and plaintiff’s
twenty-year suspended sentence; and (4) an attempt to intimidate a witness at plaintiff’s
revocation hearing. Much or all of this evidence is disputed but, as noted above, the court’s
current obligation is to view the evidence in the light most favorable to the non-movant, here
the plaintiff. As there is evidence potentially sufficient to support an inference by a
reasonable jury that Williams directed or participated in the allegedly unlawful conduct of
the other defendants, Williams is not entitled to summary judgment on the basis of lack of
personal involvement.
Defendant Williams also argues that the Oklahoma Government Tort Claims Act
(OGTCA) bars the state law claim because Williams was acting within the scope of his
employment during all relevant times. But the OGTCA does not protect public employees
who act maliciously or in bad faith. Pellegrino v. State ex rel. Cameron Univ. ex rel. Bd. of
Regents of State, 63 P.3d 535, 537 (Okla. 2003). Per the discussion above, there is evidence
sufficient to create a justiciable question as to whether Williams’ actions were malicious or
in bad faith, and hence whether he was acting within the scope of his employment. The
OGTCA therefore does not afford a basis for summary judgment as to the claim for
intentional infliction of emotional distress.
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For example, there is evidence that Williams made one or more additional phone calls to
other officers during the surveillance period keeping them informed, presumably based on what his
confidential informant was relaying, as to what plaintiff was doing. Additionally, Williams’
response was arguably disproportionate to an investigation of someone who “might” commit a
parol violation and/or be in possession of unidentified stolen property.

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For the reasons stated, the defendants’ motions for summary judgment [Doc. Nos. 128
& 132] are DENIED.
IT IS SO ORDERED.
Dated this 19th day of December, 2014.

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